One of the most frightening aspects of the Expropriation Draft Bill is that it gives our 257 municipalities the right to expropriate property without compensation.
The biggest demand for land is in the urban areas so municipalities will be the authorities most likely to do the expropriating and they will be given dangerous powers which most of them are not competent or equipped to use.
The performance of our municipalities leaves a great deal to be desired. This is clear from the fact that only 33 of our 257 municipalities obtained clean audits last year and the auditor general has complained of the lack of accountability and that his advice is simply ignored.
In addition, there is a vast corruption problem with, for example, municipalities collecting money for electricity and spending it on other projects instead of paying Eskom.
Municipalities cannot be trusted to implement expropriation without compensation fairly and with the administrative justice demanded by Section 33 of the Constitution.
The bill gives the five example of where “nil compensation” would be justified but it also states that expropriation without compensation is not limited to these reasons.
This opens the door to a wider range of reasons, valid or invalid, for seizing land without having to pay for it.
Even the examples given in the legislation fail to meet reasonable standards of fairness. One of the examples is the land held for speculation but who decides whether land is being held for purely speculative purposes or for future expansions?
If a project is delayed, does this give some municipal manager the right to decide that the real purpose of the purchase was speculation and then to confiscate the land without paying for it?
It is obvious that speculative land has value and to expropriate something of value without paying for it is akin to theft.
The one case where expropriation without compensation is justified is in the case of the unused land held by state-owned entities and which could be better used for housing.
However, this is meaningless as the state-owned entity could simply refuse to give its consent and this is the end of the matter.
The section on expropriation without compensation is so vague that the risk of abuse is unreasonably high.
A municipality can for instance, confiscate land for a community project but there is nothing in the legislation to compel the return if the project is never implemented.
This leaves the way open for a corrupt municipality to invent a fanciful community project as an excuse to confiscate land.
A major concern is that the definition of property is not confined to land and the legislation can therefore be used to confiscate anything from intellectual property to shares in a company as long as this is “in the public interest.”